High Court: No Pay for Donning PPE

Donning and doffing personal protective equipment and getting to and from the worksite are a normal part of a worker's day and do not merit extra pay, the U.S. Supreme Court unanimously declared this week.

In a ruling released Monday (Jan. 27), the high court sided with U.S. Steel in a collection case by workers seeking back pay for time spent "donning and doffing" PPE that the company requires at its steel plants.

Photos: OSHA

At issue was whether the gear in question could be considered "clothes." Most of it could, the court said.

In Sandifer et al v. United States Steel Corp., Clifton Sandifer and co-workers at the company's Gary Works subsidiary in Indiana claimed that they spent up to two hours getting ready for work—time that the workers said should be compensated under the Fair Labor Standards Act of 1938.

Gear v. Clothes

The workers contended that putting on protective gear is not the same as "changing clothes" and should be a separately compensated activity.

The workers pinned their case on a 1949 amendment to the FLSA that allowed that some instances of changing clothes and washing before and after work (at mine portals, for example) consumed enough unpaid time that the issue could be part of a collective bargaining agreement.

In the U.S. Steel case, however, the justices affirmed all of the lower-court rulings that viewed donning PPE and clean-up as an integral and brief part of the workers' day.

"[It] is evident that the donning and doffing in this case qualifies as 'changing clothes' under §203(o)," said the ruling, written by Justice Antonin Scalia.

Toupees and Scuba Gear

In the first place, Scalia said, "[o]f the 12 [PPE] items at issue, only 3—safety glasses, earplugs, and a respirator—do not fit within the elaborated interpretation of 'clothes.'"

Safety glasses and respirators are not clothing, but they require little time to put on, Justice Scalia wrote.

(The other items were a flame-retardant jacket, pair of pants, a hood, a hardhat, a snood, wristlets, work globes, leggings and metatarsal boots.)

Second, rather than splitting hairs over whether, say, earplugs are clothes and the time spent to insert earplugs should be considered separately from putting on other items, Scalia said, "A more appropriate way to proceed is for courts to ask whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing.'"

The case was argued before the court on Nov. 4 in a spirited session that included discussion of whether clothing included earrings, necklaces, parkas, scabbards, scuba gear, a suit of armour and even toupees.

("I resent that," Scalia jibed after the toupee reference.)

Reactions

U.S. Steel greeted the decision happily. “We are pleased that the Supreme Court has unanimously ruled in our favor that the brief amount of time it takes to put on and remove protective clothing is not part of the paid workday under the Fair Labor Standards Act,” the company said in a statement.

Many industries filed briefs in support of U.S. Steel. The plaintiffs' lawyer predicted that some would face the same issue.

“For many decades, U.S. Steel has appropriately and constructively addressed these matters in our collective bargaining process and this decision reaffirms the validity of that approach.”

Eric Schnapper, the plaintiffs' lawyer, predicted that the same debate would now shift to other industries.

It is a given that unions have made a difference in the health, safety and treatment of workers. But to sue to get additional monies for donning PPE. Got to hand to the United Steel Workers.

Comment from M. Halliwell, (1/30/2014, 10:55 AM)

My experience has been that, except for mobing/demobing for out-of-town work, travel is not typically something you can claim. As for the PPE: what is taking the workers 2 hours to get into?

Comment from peter gibson, (1/30/2014, 11:11 AM)

Typical unions .... 2 hours for what.

Comment from Andrew Piedl, (1/30/2014, 11:35 AM)

I wonder if Scalia is 'on the clock' while donning his holy robes

Comment from Chuck Pease, (1/30/2014, 8:43 PM)

Supreme Court Justices average $ 217,000 in salary. Dont think he cares how long it takes to don his apparell.

Comment from Keith Holdsworth, (2/5/2014, 11:26 AM)

Once you show up for work in your civilian clothes and clock in to work any time or costs associated with getting ready to perform a job safely should be paid for by the employer.....it doesn't matter if they are Union or Non-union. It has already been determined the employer is responsible for the costs of PPE in the work place, why would the time to put it on or take it off not be paid for. Provided the time spent is reasonable and not being wasted frivolously.